Phillips v McLean - [2015] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
PHILLIPS & ANOR v MCLEAN
[2015] SASC 50
Judgment of Judge Withers a Master of the Supreme Court
30 March 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING
Application to admit will to probate in solemn form. Plaintiffs appointed as executors under a will made in May 2009. The defendant was appointed executor under a will made in 1957. The defendant alleged that the deceased did not have testamentary capacity at the time of making the 2009 will. The parties reached a compromise in the action and a consent order was sought to prove the 1957 will.
Held (admitting the 1957 will to probate in solemn form).
(1) Where testamentary capacity at the time of making a later will is challenged the Court must carefully assess the evidence to satisfy itself that the deceased was not then of sound mind.
(2) The deceased’s testamentary capacity is a question of fact for the decision of the Court on the available evidence.
(3) The evidence must be sufficient to establish a well founded suspicion that the deceased lacked testamentary capacity at the time of making his last will.
(4) A presumption of regularity applies to a will that is apparently regular and complies with the requirements for due execution and the formal statutory requirements.
(5) The deceased lacked testamentary capacity at the time of making his 2009 will.
(6) The 1957 will is to be admitted to probate in solemn form.
Supreme Court Civil Rules 2006 (SA) r 205(8), referred to.
Wade v Frost [2014] SASC 162; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; Lewis v Gersace (unreported, Justice Peek, Supreme Court of South Australia, 11 March 2014); Docking v Schwarzkopf [2015] SASC 18; Re Unsworth (deceased) (1974) 8 SASR 312, considered.

PHILLIPS & ANOR v MCLEAN
[2015] SASC 50

JUDGE WITHERS. Robert Evans McLean (hereafter “Mr McLean” or “the deceased”) was a retired shipping manager who died on 18 March 2012. He left a will dated 4 May 2009 in which the first and second plaintiffs were named as executors. By Probate proceedings issued in this Court on 11 November 2013 the plaintiff sought an order that the Court pronounce for that will in solemn form of law. The 2009 will named thirteen beneficiaries, ten of whom were individuals. The sum of $100,000.00 was to be shared amongst five individuals and there were five legacies of $50,000.00 each payable to the defendant and his four daughters. The residual beneficiaries under the 2009 will were three charitable organisations.
One earlier will had been executed by Mr McLean on 20 August 1957. That will named the defendant as the executor and sole beneficiary of his estate.
The defendant filed a defence and cross-action to the plaintiff’s claim on 31 January 2014. By his defence the defendant asserted that the deceased lacked testamentary capacity at the time of making his May 2009 will. A number of particulars and explanations were set out to justify that plea. It was pleaded that at the time of making the 2009 will the deceased suffered from mental illness, a consequence of which was that he lacked testamentary capacity.
Paragraphs 7 to 9 of the defence set out in considerable detail the issues and behaviours upon which the defendant relied in challenging the testamentary capacity of the deceased at the time of the 2009 will. By a cross-action filed on the same day, the defendant sought an order that the Court pronounce for the 1957 will of the deceased in solemn form of law and that it pronounce against the purported 2009 will.
In March 2014 the Court ordered that the defendant give notice (of the defendant’s counterclaim) under Rule 205(8)(a) of the Supreme Court Civil Rules 2006 (SA) to all beneficiaries under the will of the deceased of May 2009. By affidavit evidence later filed it is apparent that such notices were given and that no person so notified made application to intervene in these proceedings.
After his death, the 1957 will was found at the deceased’s premises in a locked box with a number of other papers and items. The original will was tendered at the hearing of the defendant’s application on 17 March 2015 and was marked by me with the letter “A”, my initials and the date. That will is now lodged with the Probate Registry.
Gray J had cause to consider testamentary capacity in the matter of Wade v Frost [2014] SASC 162. His Honour reviewed the authorities relating to that issue and concluded in [37] of his reasons as follows:
[37] The effect of these authorities is that, in cases such as the present, notwithstanding the presumption of testamentary capacity, once appraised of allegations or evidence of a lack of testamentary capacity, the court should carefully assess the evidence to affirmatively satisfy itself that the deceased was of sound mind when making his or her will. The deceased’s testamentary capacity is a question of fact on which the court must ultimately come to its own conclusion on the evidence, though it may be assisted by expert evidence. Before making a finding that the deceased had testamentary capacity, the court should be satisfied that the deceased was aware of the significance of making a will, the assets comprising his or her estate – in general terms – and the persons who might expect to inherit under the will and the basis for their expectations. Further, the court should be satisfied that, at the time of making the will, the deceased’s judgment in deciding how to dispose of his or her estate was not overborne, for example by a medical condition, age or the influence of another person.
In Spoehr v Health Services Charitable Gifts Board [2014] SASC 171 the Court considered an application for judgment by consent that the Court pronounce against the force and validity of an alleged will of the deceased made in 2001 and grant letters of administration of the deceased’s estate to the plaintiff. The sole surviving beneficiary under the deceased’s will was the Royal Adelaide Hospital Research Fund. There were various issues regarding the deceased’s mental state and the parties reached a settlement whereby the Royal Adelaide Hospital Research Fund was to receive some funds and the deceased’s granddaughter a legacy, with the remainder being divided between the deceased’s three children.
In that matter Gray J considered evidence provided in relation to the deceased’s mental capacity, including evidence as to the conduct of the deceased prior to his death, and a report of Dr Jane Hecker a consultant physician specializing in memory disorders. His Honour then reviewed the legal principles that apply where a Court may pronounce against the validity of a testamentary instrument.
Reference was made in [30] of his reasons as follows:
[30] In Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, the authors cite the decision of Cairns J in Re Muirhead,[1] and state:[2]
Where the court is asked to pronounce against what purports to be the last will of the deceased, evidence must be produced to show lack of due execution, incapacity or whatever ground is alleged for the invalidity of the will. It is the duty of the probate court to give effect if it can to the wishes of the testator as expressed in testamentary documents and it should not, therefore, pronounce against what it knows to be the last will in date without making an inquiry as to its validity. …
[1] Re Muirhead [1971] 1 ALL ER 609.
[2] Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (Sweet & Maxwell, 19^th ed, 2008), [39-08].
Peek J had cause to consider this issue in the matter of Lewis v Gersace (Unreported, Supreme Court of South Australia, Peek J, 11 March 2014). In that matter the plaintiff had sought orders pronouncing against a will made in 2005 and pronouncing for a will made in 2000. A counterclaim sought a pronouncement for the 2005 will. The action resolved at mediation and the plaintiff sought consent orders in terms of its claims with dismissal of the counterclaim. The plaintiff tendered evidence, including expert medical evidence, relating to testamentary capacity.
Peek J said:
It is clear that the court may not grant probate in solemn form of a penultimate Will simply by reason of the consent of the parties or the consent of the interested persons. However, in the present case, I find that the propounder of the earlier Will, that is to say the 2000 Will, does establish circumstances which give rise to a well-founded suspicion that the subsequent 2005 document does not represent the true Will of a capable testator. … [Italics mine.]
His Honour went on to say:
Strictly speaking, the required degree of cogency of such evidence has been described as needing to give rise to a ‘well founded suspicion’ that the later document does not express the true will of a free and capable testator. However, in the present case I find that the cogency of the evidence before me in affidavit material which is uncontested, is well above that required threshold level. …
Gray J summarised the authorities in [38] of his decision in the Spoehr matter when he said:
[38] In summary, the authorities give rise to the following principles regarding contentious probate actions where orders are sought by consent, in default or by reason of being undefended. The Court does not have a duty to conduct any independent investigation in relation to the validity of the will. However, in cases where an order is sought pronouncing against a will, the Court should conduct an investigation where circumstances exist which give rise to a well founded suspicion that the document is not valid and no party comes forward to rebut those circumstances.
Stanley J in Docking v Schwarzkopf [2015] SASC 18 at [8], in considering this issue, said:
[8] The sole issue in these proceedings is testamentary capacity. In considering an application for probate of a will, the Court is not conducting some independent inquiry which places it under a duty to go into evidence which the parties before the Court have not adduced.[3] However, in cases where an order is sought pronouncing against a will, the Court should conduct an investigation where circumstances exist which give rise to a well founded suspicion that the document is not valid and no party comes forward to rebut those circumstances.[4]
[3] R v Levy (No. 2) (1957) VLR 662 at 665; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171 at [37].
[4] Spoehr v Health Services Charitable Gifts Board [2014] SASC 171 at [38].
In this matter the defendant’s evidence is largely contained within an affidavit of Davids Valdis Darzins. Mr Darzins is the solicitor for the defendant. His affidavit was tendered at the hearing. That evidence established that the witnesses to the 1957 will are no longer alive. However, the chain of discovery and production of the 1957 will are established through the affidavit of Elizabeth Jane Francis (FDN 11). The evidence satisfies me that the Court is entitled to regard this will as being subject to the presumption of regularity as it appears on its face to be duly executed and to comply with the requirements of the Wills Act (1936) (SA).
Bray CJ in In re Unsworth, deceased (1974) 8 SASR 312 at 318-319 said:
… There is a presumption in the case of a will, regular on the face of it and apparently duly executed, that the formal requirements of the statute have been duly complied with in the absence of proof to the contrary: William and Mortimer, above, at p 180, Tristam and Coote, above, at p 712. Wills apparently regular on their face have frequently upheld, even though the attesting witnesses are dead or remember nothing of the circumstances.
It was pointed out that the 1957 will was made at a time when the deceased would only have been 40 years of age. It is entitled to have the benefit of the presumption of regularity.
The evidence largely relied on by the defendant in support of the assertion that the Court should have a well-founded suspicion that the will of May 2009 was not valid is contained in medical reports, particularly of Dr Jane Hecker of 23 October 2012, and Dr Peteris Darzins of 13 November 2014. Copies of these reports are exhibited to the affidavit of Mr Darzins.
Dr Hecker is a well-known consultant with speciality in memory disorders and aged care and rehabilitation. She was requested to provide a report in this matter. She was forwarded a large number of documents, including a statement about the deceased prepared by Susan Darzins with the assistance of Elizabeth Francis, Margaret Pallotta and Jenny Jones.
Dr Hecker traversed the history of the deceased taken from this material and noted that the family statement suggested that the deceased underwent some significant changes in personality and behaviour from approximately the year 2000. He was described as having become increasingly socially isolated. He refused assistance and withdrew from family gatherings. He failed to lodge several years of tax returns, which was very uncharacteristic. He hoarded large amounts of papers. He avoided using the oven, stove top or microwave, and did not use a brand new bed and mattress. He used paper towel rather than regular towels in the bathroom and then dried the paper towel. He was extremely frugal notwithstanding his significant assets. He had difficulty with decision making. He refused offers of assistance. There was a concern about a period of extreme hyperactivity, possible hypomania in 2006, and there was a further period of significant agitation in 2009.
Dr Peteris Darzins had contacted the general practitioner of Mr McLean on 28 January 2006 expressing concern about this condition. This was seen by Mr McLean as an unwarranted interference, resulting in increasing aggression and anger towards family members, with increasing paranoia. There was a further period of significant agitation in 2009, but the family did not then contact the general practitioner as it was thought this would aggravate the already somewhat poisoned relationship.
Dr Hecker opined that the material was suggestive of “a background personality disorder, probably obsessive compulsive personality”. She said:
… it would appear from the family information provided that Bob may have suffered from manic depressive disorder with periods of both significant depression and notable hypomania. …
I believe there is significant evidence that Bob McLean is likely to have had an underlying psychiatric illness which may well have impacted on his decision making and judgement in relation to his final Will. …
Further in her report, at page 8 of 11, she says:
At the time instructions were given and the final Will was executed in May 2009, Bob McLean appeared to be in a hypomanic phase and was demonstrating paranoia towards his nieces. Based on the criteria of Banks and Goodfellow, there is concern regarding clause d) and e) [clause d) retained the ability to evaluate and discriminate between the respective strengths of competing claims demonstrating appreciation of the consequence of their decision; clause e) be free from delusional thought or otherwise disorders of the mind which may influence decision making] …
A consultant psychiatrist, Dr Geoffrey Seidel also provided a report dated 3 May 2013. He too was provided with a significant amount of background material. He did not have a copy of the report of Dr Peteris Darzins of 13 November 2014.
He said, at page 5 of his report:
… Accepting the fairly significant limitations in the data provided in this case I would however start by saying that there is fairly convincing evidence that, in the least, Mr Bob McLean was an unusual and eccentric personality and the data suggest that there is a high likelihood of him having had a Personality Disorder. …
At page 6, he says:
My summary of this discussion is that I think there is a high probability that Robert McLean had a form of personality disorder but that the possibility of hypomanic episode of Bipolar Disorder is very heavily reliant on the reliability and acceptability evidence from largely interested parties. Accepting the evidence as given, on balance, I think the symptoms described are consistent with hypomania. …
He agreed with Dr Hecker that a contemporaneous psychogeriatric assessment was indicated at the time of the May 2009 will.
In my view, the most persuasive report in this matter is that of Dr Peteris Darzins. Dr Darzins is a consultant physician and geriatrician. In his report he immediately declared a conflict of interest in that he was and is married to a niece of the deceased and has had a reasonably close relationship with the deceased’s brother, who is the defendant. However he did have the opportunity of observing the deceased over many years. I accept his report as his professional and dispassionate assessment.
Mr Darzins noted that in 2006 he became concerned about a marked change in the deceased’s behaviour and thought that he had a mood disorder and that he was hypomanic. He had a number of conversations with Mr McLean at that time which caused him such concern that he contacted the SA Guardianship Board and his general practitioner to advocate a psychiatric assessment. This action was deeply resented by Mr McLean. In 2009 again there was a particular concern about the deceased’s behaviour.
Dr Darzins reviewed the material provided to other experts. He concluded at the time of the making of the 2009 will that the deceased comprehended the nature of will making and its effect. However, he expressed the opinion that at that time he was suffering from hypomania, which he had also suffered in late 2005/early 2006.
At page 16 of his report, he says:
More specifically, I conclude that the events leading to Mr McLean forming the decision to make a Will in 2009, the giving of instructions in late April 2009 to the Solicitor and the actual signing of the Will four days later were during a period of particularly marked disturbance of Mr McLean’s mind. I am of the view that these activities are of themselves indicators that hypomania was present. The abnormal behaviour which manifested the mental illness of hypomania occurred during a period of months from early to mid 2009.
He also expressed the opinion that the disorder of the mind at that time “poisoned Mr McLean’s affections”.
At page 18 he expressed the opinion that the deceased developed and maintained a paranoid view of the family as a result of its actions taken in late 2005/early 2006. He thought that the family was working against his best interests. Dr Darzins said:
… In my opinion this paranoid belief was present during the period when Mr McLean made the contested 2009 Will. The delusion influenced his Will in disposing of his property. In my opinion Mr McLean’s affections towards his family were poisoned by the disorder of the mind, and this is what motivated him to make a Will that left only a small part of his estate to his family. This frame of mind persisted until at least the time when he made his Will in 2009.
In his summary at page 25, Dr Darzins said:
It is my opinion that at the time when Mr McLean made the contested Will in 2009 he had an overriding mental dysfunction that was sufficient to disrupt Mr McLean’s ability to weigh the claims which naturally ought press upon him. I consider that Mr McLean’s mind was not free to act in a natural, regular, and ordinary manner. More specifically, I consider that Mr McLean had a mental illness – he had hypomania. This mental illness occurred on the background of an obsessive-compulsive personality disorder. As a result of the hypomania Mr McLean formed and maintained unfounded suspicions about his family’s actions towards him, which critically influenced his decisions in his Will.

A conflicting opinion was obtained by the solicitors for the plaintiff from Dr Marty Ewer, a psychiatrist. He did not accept that it was established that the deceased lacked testamentary capacity at the time of the May 2009 will. He said that “there is insufficient evidence to say that Mr McLean’s testamentary capacity was adversely affected by a psychiatric disorder”.
Dr Ewer did not have the benefit of Dr Darzins’ report before preparing his own report. Some issues were raised about errors in Dr Ewer’s report, but in any event this is not a situation where the Court is obliged to rule upon the different conclusions. The report of Dr Ewer as a whole has not served to undermine the evidence of the existence of a well-founded suspicion as to the validity of the 2009 Will.
All of the evidence provided reasonably raises a suspicion which is well-founded, that the deceased suffered from a mental condition, namely hypomania, at the time he made the 2009 will, and that this condition influenced his testamentary intentions. No party has come forward to tender any evidence or make any submission that the deceased did in fact have testamentary capacity at the time of making the 2009 will. In all the circumstances I consider it appropriate to make an order pronouncing against the validity of that will.
I have found that the 1957 will is entitled to the benefit of the presumption of regularity. There is no challenge to Mr McLean’s testamentary capacity at that time. There will be an order pronouncing for the force and validity of that will, which was produced to the Court and which I have marked with the letter “A” and my initials and the date.
The parties have sought an order in terms of the Minutes provided to the Court at the hearing on 17 March 2015. The parties have sought that a Deed of Terms of Compromise be made a Rule of Court. At the delivery of these Reasons I propose to make an order in terms of these Minutes of Order.